Dimock’s ‘Sue and Settle’ Litigant’s Next Target: Pennsylvania

EID has spent a lot of time talking about Dimock, Pa., over the years, and every time the saga seems to be coming to a close, someone does something to try to keep it in the headlines. Most recently that someone has been Ray Kemble, who some may remember for being part of the original methane migration claims made in Dimock. First, Kemble sued Cabot Oil and Gas in 2017 over claims regarding methane migration that were resolved in a settlement in 2012. And now, Kemble is suing the Commonwealth of Pennsylvania for what he and his attorneys are claiming is a “criminal conspiracy between state and private actors, to POISON the air, land, water, and people, since the first horizontal well was drilled 2/20/2006 [sic].”

A press release sent out earlier this week by Kemble and activist Craig Stevens notes that Kemble will be sending “a Notice of Claim against the Commonwealth for $38.7 M, for Nuisance, Personal Injury, Complete Loss of Property Value, and other damages, including gross violations of Mr. Kemble’s Civil, Constitutional, and Natural Rights [sic]” (emphasis added).

Kemble’s latest allegations are quite hefty and — quite frankly — have no merit when one considers the events that have led up to this announced litigation. Let’s take a look:

(Note: The above and following quotes from the press release are copied exactly as they were written, including multiple misspellings, random capitalization, and shorthand.)

Press release:“Mr. Kemble first observed a change in his water quality in October 2008, after Cabot drilled the Costello #1 well 530’ft from Mr. Kemble’s water well. His water was offically determined by PADEP to be contaminated by Cabot Oil and Gas 15 April 2010 [sic].”

For those who haven’t followed this saga over the past decade, Kemble was part of the original group in Dimock that brought allegations of methane migration against Cabot. In Pennsylvania, there is a “presumption of liability,” meaning that an oil and gas company is held responsible for any changes to water quality within six months of a well being drilled for properties in a 2,500-foot radius of the well (it was 1,000 feet when the claims were made). Therefore, because complaints were made following the drilling of its gas wells, and there were no baseline tests to compare water standards prior to that drilling, state law deemed that, by default, Cabot was accountable for elevated levels of methane in water wells near its well sites. As such, the Department of Environmental Protection (DEP) reached an agreement, or Consent Order, with Cabot that included settlements in some cases, water deliveries and/or treatment systems for the families involved, and an agreement to shut in wells and halt operations in a nine-square mile area in Dimock.

Kemble was one of the individuals who eventually signed a settlement with the company that included a non-disclosure agreement — which is pretty standard practice in nuisance litigation cases. It appears he did not, however, accept a treatment system that would have removed the methane from his water.

Press release: “Since Nov 30, 2011, Mr. Kemble has been DENIED his rights to clean water under section 3218 of the 1984 Oil and Gas Act, as amended by Act 13 (2012), by State Actors, including two governors, five DEP secretaries, and principally, Mr. Scott Perry, Deputy Sec. of Oil and Gas [sic].”

This isn’t true at all, as Cabot made every effort to ensure Kemble would have access to potable water.

On Oct. 18, 2011, DEP notified Cabot that it had fulfilled the obligations of the Consent Order and could thus stop delivering water to residents, including Kemble, beginning Nov. 30. Cabot issued a letter shortly after notifying residents that had been receiving water deliveries about what would occur. Notably, Cabot offered to pay for treatment options and a plumber to reconnect water or install treatment systems for up to 60 days, laying out a clear timelinewhile asking residents to respond with their desired course of action. Here’s a few key excerpts (full letter):

“… Cabot either has installed or remains willing to install a whole-house methane mitigation water treatment system for Property Owners. The whole-house methane mitigation water treatment system removes methane from the water to a level of 5 mg/l (5 parts per million) or less.”

“Homeowners who accept this offer, in writing, prior to November 30, 2011 will continue to receive temporary water supplies until the work is completed…”

“Some homeowners have not permitted Cabot’s consultants to test their water supplies or have failed to allow access on a reasonable schedule. For those Property Owners who refuse to allow testing of their permanent water well supply, Cabot will immediately discontinue delivery of water, and will not wait until November 30, 2011 to discontinue delivery of fresh water.”

“Just to be clear: 1) if you already have a whole-house methane mitigation water treatment system, the temporary potable water will be discontinued as soon as a professional plumber reconnects your water well supply; 2) if Cabot is installing a whole-house methane mitigation water treatment system and for some legitimate reason the work is delayed beyond November 30, 2011, then you will continue to receive temporary potable water until the system is installed; 3) once the whole-house methane mitigation water treatment system is installed, the temporary water will be discontinued; 4) if you fail to make arrangements for a professional plumber to reconnect your water supply or if you request a methane removal system and fail to allow access on a reasonable schedule, then temporary water will be discontinued on November 30, 2011; and 5) if you refuse to allow Cabot’s consultants to test your permanent water well supply, Cabot will immediately discontinue delivery of potable water, and will not wait until November 30, 2011 to discontinue delivery of potable water.” (emphasis added)

Not only were DEP and then Cabot very clear regarding how and when water deliveries would stop, ample opportunity was given to allow Cabot to fix the water issues. Kemble does not appear to have taken advantage of those opportunities, and eventually signed a settlement in 2012.

Press release: “This conspiracy had the effect of subverting the laws of the Commonwealth to deny citizens their natural, constitutioinal, and civil rights. Mr. Kemble futher DEMANDS that the Attorney General complete his criminal investigation which Mr. Kemble instigated in May of 2017, and that a Grand Jury be convened to investigate these charges [sic].”

These two excerpts really go together. If we fast-forward five years from the settlement to April 2017, Kemble reappeared alongside notorious anti-fracking litigation lawyer Charles F. Speer – whose law firm phone number also doubled as the Fracking Senseless (Craig Stevens’ Energy In Denial group) number – and the Pennsylvania law firm Fellerman and Ciarimboli with a second lawsuit against Cabot. This time he claimed to have found new issues with his water that appeared to be similar to claims resolved in the initial settlement and that (unsurprisingly) he once again blamed on the company. Notably, Speer’s motion to dismiss the case without prejudice was granted in June.

Cabot filed its own lawsuit against Kemble, Speer and the Fellerman and Ciarimboli law firm in August 2017 on the grounds that Kemble was outside the statute of limitations on the claims he made in April that were part of his 2012 settlement, and that he breached the terms of that settlement in filing a second suit.

As Forbes contributor David Blackmon noted shortly after the filing, “this is what it looks like when a U.S. corporation declines to play the ‘sue and settle’ game any longer, and chooses to aggressively defend itself on the merits instead.” Here are some of Cabot’s complaints in that lawsuit that Blackmon highlighted:

Prior to 2012, Defendant Speer, a pig farm nuisance lawyer from Missouri, routinely filed suits against those in the agricultural industry based on alleged damages from odors and other purported nuisances.

After Missouri enacted legislation at the end of 2011 that put an end to Speer’s pig farm lawsuits, Speer set his sights on Pennsylvania and switched his focus from pigs to rigs.

In the process, Speer and Speer Law teamed up Ciarimboli, Boylan, and F & C to commence nuisance claim lawsuits against natural gas operators in Pennsylvania.

One of their new Pennsylvania clients, Kemble, had sued Cabot and GDS in 2009 and settled his claims in 2012.

Following the 2012 settlement agreement, Kemble spent the next five years breaching its terms.

Despite knowing that Kemble had settled his claims against Cabot and GDS in 2012, Speer, Speer Law, Ciarimboli, Boylan, and F & C drafted and filed a 24-page complaint against Cabot and GDS in April of 2017, in the Middle District of Pennsylvania (“2017 Complaint”), for which they had no probable cause. See, Ex. A, a copy of the 2017 Complaint.

The 2017 Complaint included irrelevant and inflammatory allegations designed to harass Cabot and GDS, attract media attention, poison the community and jury pool against Cabot and GDS, and extort payment from Cabot and GDS when no legitimate claims existed.

As a result of all Defendants’ tortious, intentional, malicious, and wrongful use of process, and Kemble’s multiple breaches of the 2012 settlement agreement, Cabot and GDS are seeking compensatory damages and punitive damages in the amount of $5,000,000.00.

This litigation is also still ongoing.

And that brings us to this week, as Kemble is once again suing – this time the Commonwealth of Pennsylvania. This is just the latest example of a six-year saga that has seen Kemble traveling across the state, down to Florida multiple times and even to Paris to exploit an issue that was settled way back in 2012.